Best Practices for Design Patents- Know the Subject Matter Qualifications

By Debby Winters

A design patent protects the visual ornamental characteristics of an invention. A common misconception is that if there is any utility to the invention, a design patent is not available to cover the subject matter of that invention. However, this is not always the case. If the product is functional but also includes features that are purely ornamental, a design patent may be obtained on those specific ornamental features. The question to ask is: what is unique? Is it the look of the invention, or only the function? If the design of the invention is dictated by function and lacks ornamentality, then a design patent would not be appropriate. However, if only the look of the invention is unique, or if both the look and function are unique, then a design patent may be appropriate.

Additionally, any time neither a utility or design patent are appropriate, always consider whether trade dress is appropriate.

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